John here again.
We seem to be receiving more enquiries from clients who have been unhappy with how Solicitors have advised them. I thought I would put together a quick guide on some of the issues affecting anyone contemplating a claim against their former Solicitors where they think they got things wrong and caused them losses.
This, with the help of many sources, is what I came up with.
Claims against negligent Solicitors
Individuals (and businesses) often rely on the advice of Solicitors. Solicitors usually get things right, but sometimes there can be a loss suffered, or another unwelcome consequence, where they got it wrong. In these circumstances what rights do you have?
Are you entitled to bring a claim against the Solicitor?
You must be able to show you were owed a “duty of care” by the Solicitor. In most cases this will be obvious, because you engaged the Solicitor to advise you or to act on your behalf.
You must be able to show that a loss has actually been suffered and that the loss was caused by the breach of duty of care and not by other factors.
You must still be in time to bring a claim. Time limits have been laid down in law for different types of claims. In most professional negligence cases, the time limit is six years from the date of the negligence but sometimes, when the negligence has not come to light until later, this time limit may be extended. If a claim is brought too late the defendant will have a strong defence.
Has the Solicitor been negligent?
To succeed in a claim, you must establish a breach of professional duty by proving that the professional’s conduct fell below the standard of a reasonably competent professional in the same area of expertise and that this breach caused you loss.
In order to find this out, the facts must be looked at and considered in light of the law which has developed from court decisions.
There is a body of law governing the amount of recoverable loss. In general, there will only be compensation for those losses which could have been reasonably foreseen at the time of the advice by the Solicitor. This is often complicated.
As well as a negligence claim, you may also have other claims, such as a breach of contract.
Even if the Solicitor has been negligent, your claim’s value might be reduced if, by your own negligence, you contributed to your loss.
Your compensation award might also be reduced if you did not take reasonable steps to limit the loss suffered.
Factors to consider before claiming
In most cases, unless a claim settles quickly, pursuing it can be costly and, even if you win at court, you will not usually recover all of the costs you have spent on the case.
You should check your insurance. Some house or motor insurance policies provide legal expenses cover. You should also discuss fee arrangements with the firm of Solicitors you want to use in the claim.
Steps to be taken before to court proceedings
It is often worthwhile putting your grievance to the Solicitor directly before involving fresh Solicitors, in case the matter can be resolved between yourselves. The must have a formal complaints policy. Ask for it and follow it.
Another possible approach is to contact the Solicitor’s regulatory body. Your former Solicitors must signpost you to the regulator and complaints body if you ask them to.
If these steps do not resolve your claim, the best option is to use a firm of Solicitors with a speciality in professional negligence.
If those specialist Solicitors advise that you have a good claim worth pursuing, the court rules give a procedure, the Professional Negligence Pre-Action Protocol, to be followed before court proceedings. This procedure is intended to encourage the early exchange of information and attempts to settle the case without the need for court proceedings.
The first step is to send the defendant Solicitor a ‘Preliminary Notice’ setting out brief details of the grievance, then followed by a detailed ‘Letter of Claim’ with copies of any supporting documents.
The Pre-Action Protocol lays out a timetable for a response by the defendant.
It can be extremely beneficial and tactically astute to make offers to settle. The court will look at these at the end of the case, when it comes to considering the reasonableness of the parties’ behaviour and whether to penalise them in costs. These offers are called ‘Part 36 Offers’.
Throughout the claim the parties should consider alternative ways of resolving the dispute such as mediation, or simple round table meetings.
If at any stage the claim is about to expire due to time limits, steps must be taken to preserve the claim either by issuing proceedings and then agreeing with the defendant to freeze the case so that work can still be undertaken, or by entering an agreement with the defendant to bring time to a standstill, preventing them from subsequently raising time limits as a defence to any claim.
If settlement isn’t reached after the Pre-Action Protocol steps, then as a last resort, court proceedings can be considered.
The Solicitors you use should advise you on the likely costs consequences and timeframe of taking a case through court proceedings. Some of these elements may be uncertain as they, to an extent, depend upon the actions of the defendant and the court. Even after starting court proceedings, it can often take well over a year for a case to get to a trial.
In most cases, settlement is reached before the court case is concluded. Early settlement will mean less cost, time and upset to the parties and enable them to move on.
As you will appreciate, this information is for general knowledge only. Specific advice should be sought for individual cases. If you think you have a circumstance that you would like to discuss, give me a call or click the button below.
That’s all for now,